Standing Committee A

[Mr. Frank Cook in the Chair]

Regulatory Reform Bill [Lords]

Clause 2 - Meaning of ``burden'' and related expressions

Question proposed [this day], That the clause stand part of the Bill. 
 Question again proposed.

Andrew Lansley: I am sure, knowing the attention that members of the Committee have paid to our debates, that they do not need me to reiterate what was said immediately prior to our adjournment.
 As I was saying, the definition of ``burden'' in the Deregulation and Contracting Out Act 1994 does not include the Bill's new definition. In the Government's view, preventing the Government from incurring expenditure—for the benefit, presumably, of other persons—constitutes a burden. This is a matter of semantics into which I shall not delve too far, but to regard preventing the Government from incurring expenditure as a burden on the population at large is, to put it mildly, stretching a point. Indeed, some might think that so preventing the Government would be of considerable benefit to the public. 
 I fully understand why the Government want to phrase the provision in that way, and I am afraid that yet again I regard them as somewhat untrustworthy. They are trying to define as burdens matters that are not, on the ground that it will be convenient for them subsequently to make regulatory reform orders to achieve a specific objective. 
 In another place, Lord Falconer of Thoroton referred to the type of regulatory reform order that he had in mind. He said that the vaccine damage payments scheme might prompt the Government to introduce an order to lift the burden that currently prevents them from paying those whom they wish to pay. We need not detain ourselves discussing the merits of extending the scheme, because both Government and Opposition Members have acknowledged them. Prior to its inclusion in the possible uses to which such orders will be put, my right hon. Friend the Member for Richmond, Yorks (Mr. Hague) made it clear that he regarded the scheme as a suitable subject for legislation, but he also pointed out that this mechanism should not be used. 
 The mechanism, which is defined as a regulatory measure, will allow the Government to lift restrictions imposed through primary legislation on the circumstances in which they may make payments and incur expenditure. However, in the public's view, allowing the Government to spend more money is not a deregulatory measure, but precisely the sort of activity that should be subject to normal scrutiny by the House. The incurring of expenditure should be consequential only on measures in a regulatory reform order that are designed to achieve a substantive deregulatory purpose. Incurring expenditure and removing constraints on the Government is not a deregulatory measure, but the Government are trying to define it as such by including it in the definitions of ``burden''. 
 I shall not seek to divide the Committee on clause 2, but I seek reassurance from the Minister that the vaccine damage payments scheme, although wholly beneficial, is an exceptional example. Will the use of regulatory reform orders to allow the Government to incur expenditure, or to extend the terms on which it is incurred, occur in only the most exceptional circumstances?

Graham Stringer: There are two changes to the definition of a burden in the 1994 Act. The hon. Member for South Cambridgeshire (Mr. Lansley) has concentrated on the inclusion of a restriction on incurring expenditure in the definition of a burden. That definition clearly applies to vaccine-damaged children and to their families, who, under the definition in previous Acts, would have been paid nothing if their children were less than 80 per cent. damaged.
 I can give the hon. Gentleman three assurances. First—and we are yet to reach this part of the debate—the normal consultation and deep consideration by two Committees will ensure that the process is not abused in the way in which he imagines. Secondly, this is not a blank cheque. The definition is concerned with an ability to spend in a particular area, and Parliament's processes for checking expenditure must be adhered to. One cannot agree to spend money through a regulatory reform order because Parliament and the Government must go through their normal procedures. Thirdly—this is admittedly an incomplete reassurance—we trawled for examples of cases in which the Bill could be used, but we found only a few. I do not envisage that the definitions will be used on many occasions, and I hope that he will be content with my two major reassurances. 
 Question put and agreed to. 
 Clause 2 ordered to stand part of the Bill.

Clause 3 - Limitations on order-making power

Andrew Lansley: I beg to move amendment No. 8, in page 3, line 2, leave out
`the Minister making the order is of the opinion that'.

Frank Cook: With this we may discuss the following amendments: No. 9, in clause 3, page 3, line 8, leave out
`the Minister is of the opinion'. 
No. 10, in clause 3, page 3, line 9, leave out `that'. 
 No. 11, in clause 3, page 3, line 12, leave out `that'.

Andrew Lansley: Amendments Nos. 8 to 11 are designed around the specific objective of removing from the structure of the Bill the provision that, in applying the four tests, which are subsequent to the objectives of the order-making power in clause 1, a Minister must form an opinion. The amendments would make the four tests less subjective and more objective.
 It may be helpful if I refer to each amendment and make it clear which does what. Amendments Nos. 8 and 9 are substantive; amendments Nos. 10 and 11 are consequential. Amendments Nos. 8 and 9 both relate to clause 3(1), which concerns two tests. The first test is that the order should not ``remove any necessary protection''. The second test in clause 3(1)(b) is a new test that goes beyond the Deregulation and Contracting Act 1994. It states that the order should not 
``prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue exercise.''
 That, for convenience, is called the reasonable expectations test. 
 Those two tests are currently in the structure of the Bill. A Minister making the order must be of the opinion that the order does not remove either reasonable expectations or necessary protection. The purpose of amendment No. 8 is to remove the subjective view of the Minister on those two matters. 
 Amendment No. 9 concerns clause 3(2)(a) and (b), which describe the two other tests. Paragraph (a) states that the first test should 
``strike a fair balance between the public interest and the interests of the persons affected by the burden being created''. 
Paragraph (b), the desirability test, states that the order may create a burden if the Minister is of the opinion 
``that the extent to which the order removes or reduces one or more burdens, or has other beneficial effects for persons affected by the burdens imposed by existing law, makes it desirable for the order to be made.'' 
In subsection (2), we are talking about circumstances where burdens have been created. 
 In respect of Amendment No. 9, it is difficult to be sure under what circumstances the two tests would be used. Ministers propose to introduce the new tests but they have obviously not been tested in the context of the Deregulation and Contracting Out Act 1994. There is no reason to suppose that ``a fair balance'' as determined by a Minister would be challengeable by the courts. I am equally unsure why it would be a problem to remove the opinion of the Minister in those circumstances, and to term the Bill so that the order would be one that struck a fair balance and was desirable in the agreed views of the Minister, the Select Committees and the House. Any court that wished to challenge the two tests would have to prove that they had not been applied, or had been applied unreasonably. 
 To insert the reference that the Minister is ``of the opinion'' is to take the tests that the courts would have to apply a step further. The question would be not simply whether the tests had been applied unreasonably, but whether no reasonable Minister could have arrived at such an opinion and that is not what we want. The Committee wants the exceptional power and scrutiny provisions provided by the Bill to be used in circumstances where there is a clear demonstrable instance of benefit, which is not controversial or likely to be challenged. That is the more difficult ambition of amendment No. 9. 
 Amendment No. 8 is more straightforward and I would like the Minister to explain why he will not accept it. The test of necessary protection already exists in section 3(4)(b) of the 1994 Act and it is not subject to the Minister's opinion. As far as I am aware, in the 48 instances in which the deregulation and contracting out orders have been used, that test has not been challenged by the courts and has worked well. I do not understand why it is necessary to put into the structure of the Bill the test of a Minister's opinion. If necessary protection is proof against legal challenge, and Ministers in the past have exercised the power well, why can the test of reasonable expectation not be the subject of a similar provision, without the intrusion of a Minister's opinion? 
 I apologise to the Committee if I appear to be labouring the point, but there is a difficulty. Clause 3(1) states that the Minister making the order must be 
``of the opinion that the order does not . . . prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise.'' 
It is surely abridging the reasonable expectations test that we set out to protect. If a person has reasonable expectations, a court will uphold them, even if Ministers, the Select Committee and the House should fail to uphold them as we would hope. However, including 
``the Minister is of the opinion'', 
creates a circumstance, for a person with reasonable expectations, in which it would be necessary to demonstrate in court that the Minister was not of that opinion. In such a case, those reasonable expectations might be frustrated, without any possibility of a successful legal challenge. 
 Although we are working somewhat in the dark on amendment No. 9, I cannot see the necessity of including the test of a Minister's opinion. It strikes me as objectionable. I hope that I might stir my colleagues and other hon. Members to support amendment No. 8, which concerns necessary protection and reasonable expectations. It seems clear that, in line with the legislation that the Bill replaces, the intrusion implied by the words is not only unnecessary but undesirable.

Brian Cotter: I rise to support the hon. Member for South Cambridgeshire. As hon. Members have said, we are discussing the possibility of a situation being based on a Minister's opinion. However, Ministers will have to substantiate such opinions in the documents placed before Parliament.
 The amendments are key to the Bill because we are concerned to have objective, rather than subjective, tests. Reference has been made to my colleague in the other place, Lord Goodhart. He pointed out that a Minister's opinion would not be the definitive factor in the making of the order. A Minister will have to convince the Deregulation Committee that his opinion is correct. The Committee will be able to take issue with the Minister's opinion if it considers it an incorrect assessment of the situation. The Minister must then either amend the draft order accordingly, or risk the concept being rejected in the Committee's report. As Lord Goodhart said, the Minister's opinion is not the ultimate factor in determining whether an order should be accepted, and that should be reflected in the Bill. 
 What protection does the clause afford in terms of judicial review? A court of law could only intervene if a Minister's opinion were found to be irrational. That would be a hard concept to prove or disprove. A further fear was put forward. If the Government accepted the Wakeham report in its current form, the ability of the other place to block an order would be removed. A future Executive with a working majority in the Commons would not then be subject to any effective control. 
 The hon. Member for South Cambridgeshire has raised an important point. A Minister's opinion will not carry something through—he will have to convince the Committee that it is valid and correct. The Minister, therefore, is going to have to convince us that there is serious reason not to accept the amendments.

Graham Stringer: The hon. Member for South Cambridgeshire had me flapping during his speech when he said that the Deregulation and Contracting Out Act, which refers to necessary protection, does not take into account the subjective opinion of the Minister of the Crown. In fact, section 1(1) of the Act begins:
 ``If, with respect to any provision made by an enactment, a Minister of the Crown is of the opinion—''.
 I therefore hope that he will accept that, at least in that part of the Bill that is taken from the 1994 Act, we have changed nothing. What has been added to the Bill is the extra protection that the Minister must satisfy himself according to subsections 2(a) and (b). The hon. Gentleman read them out, so I shall not do so. 
 The hon. Gentleman said that there had not previously been a subjective test, and now there is one. I hope that I have shown that that is not right. He accepted that the new protections were sensible and followed the same principle of the Minister coming to a view, then going through the super-affirmative process. The process as it is applied under the 1994 Act was supported by the Conservative party from the beginning. It was not so supported by the Labour party, but it has since been convinced that the process has not been a problem. We have put in extra safeguards as we have widened the powers that can be used. Essentially, the same arguments apply to the extra safeguards as applied to necessary protection. 
 If a Minister intended to act in an unreasonable, dictatorial way, the process would be a strange one for him to go through. He has to consult the appropriate representative bodies and people affected by the measure, and that consultation—with certain exceptions that we will come to—has to be placed before the deregulation Committees. If the Minister wanted to remove protection and was being unreasonable in his judgment about necessary protection, or was attempting to remove rights or freedoms that people could reasonably expect to continue, that would be transparently clear to the Committees of both Houses, because the people affected would say, ``We believe our freedoms are being removed; the balance is not right.'' Moreover, the Committees can take evidence from those people. Given the political composition of both Committees, it is most unlikely, in the foreseeable future, that they would say, ``Fine, go ahead with the process.'' They would say, as has happened on several occasions, that the Minister was being unreasonable and that he or she should reconsider the matter. 
 The final point concerned why the Bill should contain a subjective test as opposed to an objective test. When one takes into account all the nuances and the difficult balances as the regulatory regimes are moved around, it is better for Parliament to decide the issue through a thorough and vigorous consultation involving both Houses. If there were no subjective test, but we relied only on an objective test, we would be passing the decision to the courts. My noble and learned Friend Lord Falconer of Thoroton said: 
 ``We do not think that the right course is to allow the courts, after Parliament has scrutinised the legislation with the relevant amount of information and in the necessary degree of detail, to try to unhinge that process.''—[Official Report, House of Lords, 21 December 2000; Vol. 620, c. 854.]
 The super-affirmative process is an extremely thorough and rigorous process of scrutiny of the deregulation orders, which will become regulatory reform orders. The Minister has to provide tests and protections. He must provide extra information, but there is nothing essentially different in this Bill from the 1994 Act. All that we have done is add extra protection against a wider power in clause 1. I hope that the hon. Member for South Cambridgeshire will recognise that and withdraw his amendment.

Andrew Lansley: I am grateful to the Minister as I clearly misdirected myself in my construction of the necessary protection provisions of the Deregulation and Contracting Out Act. It is clear that the fair balance and desirability test must be constructed initially by the parliamentary process. If, as the Minister says, that is necessary to defend the parliamentary process from being converted into a court-led interpretation of fair balance and desirability, I am prepared to accept his argument.
 I am still somewhat confused about reasonable expectations, however. It may be because of a lack of awareness on my part, but if the test is of a reasonable expectation and a Minister has to be of the opinion that no reasonable expectations will be frustrated by the order, do we not still run the risk of a court overturning that and saying that there are reasonable expectations? The reasonableness is in the test itself. 
 Does the fact that a Minister has to have an opinion on the matter mean that reasonable expectations would not be sustained by a court? Would a Minister have to have an unreasonable expectation, perhaps saying that reasonable expectations were not being frustrated when they clearly were, in order for that to be challenged in the court? If reasonable expectations are the test, is not the court exactly the place where such a test should be applied, if an order might be reasonably construed to have frustrated those reasonable expectations? 
 I am still not wholly persuaded by the Minister's arguments on amendment No.8. Perhaps he will take a moment to offer some further comfort. If he signifies that he will think about the matter and perhaps write to members of the Committee, we might reasonably move on.

Graham Stringer: I am always happy to save time and I thank the hon. Gentleman for saving me going through even more complicated and technical issues. I shall write to him.

Andrew Lansley: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Andrew Lansley: I beg to move amendment No. 12, in page 3, line 15, at end insert
`, and—
(c) there is a net reduction in the total burden on all those affected by the changes'.
 We have moved on only to the end of these tests. We have in the course of the discussion understood, rather better on my part anyway, the nature of the tests that are to be applied before an order is made furthering these objectives. On Second Reading, I put a question pretty straightforwardly to the Minister, which those reading our proceedings might feel has not been answered completely. The question is not whether the order has to remove or reduce burdens because clause 3(2)(b) makes that clear. Indeed, the amendment in the other place provided for that. We know that an order will, among other purposes, remove or reduce burdens. 
 We know, however, that the order has other potential objectives. It can create burdens and it can re-impose them. It can do so to an extent that, in the view of Ministers, is justified by the benefits that flow from it. Taking all those provisions as a whole, we do not know whether the net effect of such an order would be to reduce the total burdens on persons affected by the changes proposed in the order. Indeed, the Minister might have felt that I was asking a different question on Second Reading, such as whether an order must give rise to a reduction or the removal of burdens? The Minister made it clear that the answer to that is yes.My purpose in asking the question and tabling the amendment is to clarify that the overall effect of an order should not simply be that some burdens are removed or reduced, but that it should reduce the totality of burdens imposed on persons affected by the changes. 
 The amendment sets out to ensure that there is further limitation on the order-making power. With all the changes and objectives set out in clause 1, the Minister must be of the opinion that there is a net reduction in the total burden on all those affected by the changes. That is the purpose for which the Deregulation and Contracting Out Act was first created. That is why we set out to create an exceptional deregulatory purpose. The Minister described it as a super-affirmative procedure, which has considerable constitutional implications for the way that we conduct business in the House. I will not dwell on that as I raised it on Second Reading. The purpose of the amendment is to press the point. 
 Notwithstanding that, the Minister has said, quite fairly, that regulation schemes need to be affected by these orders, that they need to be able to apply to enactments more recent than those to which the Deregulation and Contracting Out Act would have applied and that the overall impact should be a deregulatory one. That is why the organisations—principally business organisations—to which the Minister was keen to refer on Second Reading welcomed the provisions of the Bill. They believe that they could be more effective overall as a consequence of delivering a lighter regulatory burden. They are also clear that that should not be overlaid by the consequences of the imposition of new burdens, whether outside the scope of the regulatory reform orders or, heaven forfend, by bringing back into the structure of such orders a framework of new regulatory burdens that would frustrate the deregulatory effect. We can deliver the purposes for which the business community, in particular, has sought only by ensuring, through an amendment such as this, that regulatory reform orders are deregulatory in their effect.

Richard Page: I endorse the amendment so ably moved by my hon. Friend the Member for South Cambridgeshire. It encapsulates the Bill; it is the raison d'etre of our proceedings because the Bill provides for a reduction in the total burden on all those affected by the changes. I would find it difficult to face a constituent who came to me, after the Committee and the various processes had done their work, saying that his burdens had increased. That would be totally unacceptable. It would also be hard to argue. Even though I would say, of course, that many other people had benefited, my constituent would be justified in being sceptical and upset that the House and the Committee had failed to give him adequate protection.
 You would take me to task, Mr. Cook, if I were to re-enter the whole debate of proportionality. We had a fairly tortuous and, dare I say, convoluted sitting this morning, but it has a tenuous connection with the matters under discussion because it leads on from the question of proportionality. Lord Falconer tried to argue in the other place that a small number of people might be faced with increased burdens if Ministers sought to rebalance an entire regulatory regime. His advocacy met with considerable scepticism. No one can be sure what changes would occur to affect entire regulatory regimes. Just how small would the small number of people be? There is a moral weakness in the noble Lord's argument; I hope that the Minister accepts that and will look with favour on our amendment. This morning, the Minister rejected our amendment No. 2, which proposed the insertion of the word ``small''. It would be a tremendous step in the right direction if he were to accept this amendment. That is surely the right and proper thing to do.

Graham Stringer: I am not sure whether we have a disagreement or a misunderstanding. I hope that it is a misunderstanding. It might be helpful if I begin by giving three definitions. There is genuine misunderstanding about the phrases ``deregulation'', ``regulatory form'' and ``better regulation''. As I have tried to explain at Cabinet Office questions, deregulation is the removal of regulations and better regulation is improving the quality of regulations and the process of generating them.

Richard Page: Is not better regulation a reduction of burdens? Would not that consequence naturally follow?

Graham Stringer: I tend to define it as a process of creating better regulations. They may well be less burdensome than they would otherwise be, but it means taking into account their impact and having a better regulatory process. Indeed, one might not regulate at all and opt for self-regulation, co-regulation or codes of practice. What we have before us now, however, is not only better regulation, but a Regulatory Reform Bill. The problems caused to business, commerce and industry by legislation and regulation often derive from overlapping regimes.
 We spoke earlier about fire regulations as 120 pieces of primary legislation and a similar number of statutory instruments. That is a good example. The amendment would allow the regulatory regime for fire to be rebalanced to a deregulatory regime. The amendment states: 
``there is a net reduction in the total burden on all those affected by the changes''. 
If the fire regime were changed to a risk-based assessment, factories and offices with higher risks might, under the conditions and objectives of clause 1, have a greater burden placed on them. Establishments with fewer fire risks, though previously assessed at the same level—if it were possible to find a way through the 240 pieces of legislation—would face fewer burdens. 
 Simplification and better regulatory reform, which is different from straightforward deregulation, benefits everyone. That is why the definitions are important. The hon. Gentleman's points may be a definite disagreement or a misunderstanding about where the Bill is leading.

Andrew Lansley: Let me see if I understand the difficulty. The Minister mentioned fire safety legislation in the context of risk-based assessments that result from the new scheme of regulation. Is he confusing burdens, which are requirements, conditions and restrictions placed on the persons affected—principally businesses—with impacts? The impacts are quite outwith the question of burdens. The Minister may believe that beneficial effects will flow from the new scheme of regulation, but that is not the same as assessing whether the burdens, in terms of the direct impact of the legislation, will be reduced on a net basis. That is a deregulatory point, but it does not necessarily mean that the scheme cannot be pursued: it can, but it must have a less burdensome effect on the industry as a whole.

Graham Stringer: I return to my point that any regulatory reform must have a deregulatory element. The hon. Gentleman's amendment states:
``there is a net reduction in the total burden on all those affected by the changes''. 
If the regulatory regime applied to fire were rebalanced towards a risk-based regime, factories, offices and buildings at greater risk might have to be inspected more often. Higher fees might have to be paid and changes made to buildings to protect people. Overall, that could be a greater burden on businesses than before. Under the previous more even regime, other businesses might have faced a lower regulatory burden. I am not saying that it is simple to do the sum because we get into questions of apples and pears, but we will benefit from putting all the legislation in one place and making it easier to understand. I ask the hon. Gentleman to withdraw the amendment because it would require that 
``there is a net reduction in the total burden on all those affected''. 
If we changed the nature of that particular regime—I can give him other examples if he wants—some people would have a greater regulatory burden.

Andrew Lansley: I now understand the Minister's point, and I apologise because I misunderstood him when I made my previous intervention. His point is simple: the amendment would require a reduction in the total burden on each person affected by the changes. The amendment is not intended to do that; it is a technical point and perhaps the Minister could tell us if we are wrong. We could always return to it on Report. The amendment's purpose is to reduce the overall burden of regulation. For example, the Minister mentioned fire safety legislation. If a risk-based assessment subjected people to greater burdens with more inspection and additional requirements, there should be a countervailing reduction in the burdens on those affected by the fire safety legislation as a consequence.

Graham Stringer: I am certainly making that point about the hon. Gentleman's amendment. I do not agree that the net impact will necessarily be reduced. As I said on Second Reading, part of the regulatory reform order must have a deregulatory effect. However, because of the change in the balance of the regulatory regime, it might be impossible to do the sum to find out. We would have to compare the apples—the simplicity of having the legislation in one place—with the pears—the real costs. In my opening speech, I said that, in assessing each part of the regulatory reform order, any burden that is placed on people or businesses has to be proportionate to the benefits provided. That should be the test, not one of overall burden.

Andrew Lansley: The Minister is being patient with me, and I am grateful. Would it not be simpler for him to say that he could envisage circumstances in which the burdens imposed by a regulatory reform order might increase in total? Such circumstances would be justified by the benefits that flow from it; that is what the proportionality test, the fair balance test and even the desirability test are based on. The Minister's least impressive argument is that we are comparing apples with pears, or fruit with vegetables, because such a comparison is implied by all those tests.

Graham Stringer: I am not prepared to say what the hon. Gentleman would like me to say. The Bill's objective is to improve regulatory regimes. Such improvements must have a deregulatory element to them—which was passed as an amendment in the other place—and would have to pass the test of proportionality and all the other tests. I will not pretend that I can do a sum here and now to guarantee that one way or another, because someone might come along in 12 months and say, ``You were wrong.'' I am not prepared to say what the hon. Gentleman wants me to, because it is impossible to say that unless one has been through the process of assessing the regulations. We are clear in our objectives: to help businesses, individuals and public sector bodies by reforming the regulatory regimes that often inhibit them, and to rebalance those regulatory regimes in a better way, using the tests in the Bill and including a deregulatory element. As much as the hon. Gentleman might want me to, I am afraid that I cannot go further than that. I agree with what he said about the amendment not being a helpful addition to the Bill.

Andrew Lansley: I am not sure that I said that. Amendments might or might not achieve the purpose for which they are intended, but I believe that this amendment would achieve its purpose. If I had sought to limit the order-making power such that the total burden on each person affected by the changes would be reduced, I would have written that. I wrote ``all those affected'', and I am not persuaded that the meaning of the amendment is anything other than what I intended.
 The purpose is clear. As my exchange with the Minister demonstrated, we wish to insert additional limitations such that the order-making power—when one considers the burdens and leaves aside the benefits—would be deregulatory in its effect. That does not mean that the regulatory burdens cannot be rebalanced—I take the Minister's point that that could happen. Fire safety legislation, if a different form of assessment is used, is a reasonable example of where burdens could be rebalanced. We all know that rebalancing burdens is not the same as increasing them; it can increase or decrease them. 
 A further test is that burdens should be decreased. It was wrong for Lord Falconer to suggest in the other place that the ability to rebalance legislation was a necessary reason not to have a specific deregulatory effect. It is perfectly possible to do that. He was wrong to suggest that the quantification of burdens is so difficult that it would be a constraint upon achieving that. It is clear that on a number of the tests that have to be applied through the legislation, Ministers will have to balance quantified and unquantified burdens and benefits. When we discuss clause 6, we might examine the extent to which quantification can be derived. That is a subset of the issue. 
 Ministers should not only be of the opinion but be able to demonstrate subsequently that the orders have a deregulatory effect, taking into account the burdens. That is what we seek through the amendment and what the Minister is clearly unable to give us. On that basis, I encourage my hon. Friends, and Government Members if they are of a mind, to sustain the original purposes of the Deregulation and Contracting-Out Act 1994 and to support amendment No. 12.

Graham Stringer: I can be of no further help to the hon. Gentleman, but I will make one last effort to persuade him that his amendment would reduce the Bill's effectiveness. We would be almost back to the 1994 Act, under which it was very difficult to achieve the objectives that we share.
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Richard Page: I beg to move amendment No. 13, in page 3, line 20, at end insert
`or—
(c) in the case of a new criminal offence which replaces an existing offence, with any fine or sentence greater than the maximum which could have been imposed for the existing offence'.
 I am aware that the title of clause 3 is ``Limitations on order-making power''. The amendment was tabled because it would constitute a limitation on that power. As was mentioned this morning, Opposition Members are worried about how a Bill as powerful as this might be used by Ministers and Departments. I am more generous than my hon. Friend the Member for South Cambridgeshire, who expressed a specific worry about the Labour Government. That is perfectly reasonable and understandable, but I will add that, in extreme and rather unlikely circumstances, the measure might even be used by a Conservative Government. I would not want to see the Bill used in such a way even by our party, although in our case that would happen inadvertently rather than by design. I do not see why we should add to the legislation process in that way. It is inappropriate for the order-making powers to be in the hands of Ministers as a result of secondary legislation to increase the maximum sentence provided for in an existing statute. 
 If the new offence created by the Bill merely replaces an existing offence and where that offence is punishable by a maximum penalty less severe than those referred to in subsections (2)(a) and (b)—for example, where no punishment of imprisonment is available under existing law—it would be wrong to use the power to enable the maximum sentence to be increased. I repeat that the powers should not be used, deliberately or inadvertently, to increase sentences for existing offences. 
 I am glad that the hon. Member for Weston-super-Mare (Mr. Cotter) is here, because I want to draw to his attention the fact that the amendment is almost identical to one that was moved by the noble Lord Goodhart in the other place on 23 January. It has, however, been honed to greater perfection than was the case when it was in the House of Lords.

Brian Cotter: At the end of the day, Lord Goodhart considered that the amendment was not practical.

Richard Page: I was not going to draw to the Committee's attention the failings of Lord Goodhart in tabling an amendment that was not practical. That is why I said, as carefully and kindly as I could, that this amendment had been honed to a greater pitch of perfection.

Brian Cotter: That honing is purely a matter of opinion, which is somewhat subjective.

Richard Page: That is a poor recovery, but I suppose that it is the best that the hon. Gentleman can do in difficult circumstances.
 I can almost summarise the arguments that the Government will advance. They will say that the Bill can achieve large-scale reforms. We have already expressed our concern at the scale of the Bill's reforms, and stressed the need for safeguards. The reforms will mean the sweeping aside, by order, of much existing legislation. 
 I pray in aid once again the fire safety regulations, which will entail getting rid of many criminal offences. The new offences that could be created might be difficult to compare with old offences, and some technically criminal offences will be replaced by criminal sanctions. Existing safeguards provide that no new criminal offence can, on indictment, be punishable by more than a two-year prison term and, on summary conviction, by no more than a level 5 fine or six months' imprisonment. 
 I hope that the Minister will not propose all those arguments, which I have plucked and pulled from replies in the other place. I must draw to his attention, however, that large-scale reforms in respect of major aspects of criminal justice should be carried through not by secondary but by primary, legislation. As the Committee knows, there are more criminal justice Bills and Acts than we can shake a stick at. It should not be too difficult to produce something to tie in with the intentions behind this measure. 
 The Bill's procedures for dealing with a new streamlined risk-based approach to counter some novel forms of mischief might lead to neither House responding positively to the document produced under clause 6 simply because the changes are viewed as too complex. I remind the Minister that examination of criminal penalties in parts of our legislation should be done other than through secondary legislation. If not, a distinct limit should be placed on what can be done, which the amendment is designed to achieve. The amendment would provide important safeguards for the individual and I hope that the Minister will accept it.

Andrew Lansley: I support my hon. Friend the Member for South-West Hertfordshire (Mr. Page), who has presented a positive case for amendment No. 13, but I want to ask a question. The provisions of section 2 subsections (1) and (2) of the Deregulation and Contracting Out Act 1994 seem precisely the same as clause 3 subsections (3) and (4) of the Bill. However, section 2(3) of the Deregulation and Contracting Out Act goes on to provide that if a new offence is created, replacing an existing offence where the maximum penalty is greater than the standard scale set out in subsection (1), the maximum penalty should not be greater than that of the offence that is abolished. That is almost but not quite the same as our proposals. We have applied the same principle, but more widely.
 If the Minister will not respond positively to my hon. Friend's arguments, will he explain—the explanatory notes, admirable as they are, do not—why similar provisions to section 3(2) of the original Act were omitted from the Bill?

Graham Stringer: The hon. Member for South Cambridgeshire is right that the drafting was taken, word for word, from the 1994 Act. I understand hon. Members' motivation and the introduction of new criminal offences is a serious matter. I suspect that if they examine what the amendment could mean in practice, they may be less happy with it. If a wide regime of penalties is replaced with one or two penalties from a series ranging from five years' imprisonment to six months' imprisonment or a fine, the amendment would open a gateway that could impose five-year sentences for offences that most reasonable people would think did not justify such a sentence. We took the two-year penalty from the DCOA, but the other penalties in that Act were not transferred to the Bill. I could read out the note providing me with advice, but it might be easier if I write to the hon. Gentlemen. I hope that I have explained that the amendment would open a gateway allowing five-year sentences to be imposed for offences that do not merit such sentences.

Andrew Lansley: The Minister is perhaps being too harsh because the purpose of the amendment is to introduce a penalty for a new offence that replaces an offence that has been abolished. Clearly, it would not be appropriate for that to be an open door to the imposition of punishment in excess of the standard scale. It would apply when one offence is replaced by another. The purpose of the amendment is not to open the door to harsher penalties, but to limit the potential of the order-making power to impose harsh penalties where they do not now exist.

Graham Stringer: I trust the hon. Gentleman's intention, but if existing offences, of which there are many, are changed, how can we relate those offences to what is proposed in the regulatory reform orders? That is in the nature of changing whole regulatory regimes and is why the hon. Gentleman would create a gateway.
 Having had time to read the advice that I have received, I acknowledge the hon. Gentleman's point, but under his amendment a seven-year penalty could be imposed. We decided that no regulation offence justifies such a penalty. If it did, it should be covered by primary legislation.

Richard Page: I heard what the Minister said and I confess that I am slightly concerned that he believes that this simple amendment, which is easy to understand, would open the gateway to longer sentences. He bids up the process each time he mentions it, ending up by saying that it would open the gateway to seven-year sentences. I should hate him to go further, because he might say that it opens the gateway to a nine-year penalty. Having heard what he said, I should welcome a written explanation of his argument in a slightly calmer and more formal response. If we are satisfied, that will be fine, but if not, we may return to the matter on Report. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 3 ordered to stand part of the Bill.

Clause 4 - Statutory instrument procedure

Question proposed, That the clause stand part of the Bill.

Andrew Lansley: I am sorry to cause delay over clause 4, because there was a considerable amount of debate on it in another place, largely relating to the proper scrutiny of the subordinate provisions order. It is proper to recognise that the Government have made changes that will make it easier for the subordinate provisions order to be passed in the form determined by the originating order—whether affirmative or negative. Those changes are helpful.
 I have one small question. Subsection (7) states that subsection (2), which refers to orders being laid before, and approved by a resolution of, each House, 
``does not apply to a subordinate provisions order, if— 
 (a) it is not made by a Minister of the Crown''. 
Does that mean the National Assembly for Wales acting alone, without a Minister of the Crown, or does it refer to somebody else, or other circumstances of which I am unaware?

Graham Stringer: It means the Welsh Assembly.
 Question put and agreed to. 
 Clause 4 ordered to stand part of the Bill.

Clause 5 - Preliminary consultation

Richard Page: I beg to move amendment No. 16, in page 4, line 40, leave out
`appear to him to be'
 and insert `are'.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 17, in page 4, line 43, leave out
`appear to him to be' 
and insert `are'. 
 No. 20, in page 5, line 3, at end insert 
`and— 
 (h) publish an invitation to other bodies to make submissions.'.

Richard Page: The amendments are all of a piece. Clause 5 allows Ministers wide discretion in the preliminary stages of the consultation process. The amendments make the consultation procedures more specific. Amendment No. 16 requires a consultation of organisations that have interests substantially affected by proposals. Amendment No. 17 refers to statutory bodies that might be affected, and amendment No. 20 refers to the consultation of other persons, as appropriate.
 As currently drafted, clause 5 gives the Minister control in each case, as it appears to him. I find that a shade arrogant. The amendments are part of a pattern: the determination of Opposition Members to loosen the tight grip of the Executive's fingers from around the throat of regulation. Controls should not be placed back into the hands of the Executive. The purpose of the Bill is to ensure that there is regulatory reform, not to tell the people who created the regulation in the first place that they can still control the process. 
 There must be a letting-go and an opening-up. I therefore ask the Committee to look at the reality. What is actually going to happen when this part of the process takes place? Who will put forward the names of the various individuals and bodies that are to be asked for their views? It will be Department officials. Who created the regulations that will be scrutinised in the first place? It will be those same officials. I appeal for a more democratic approach to the consultation process. 
 If the Minister is minded to accept amendment No. 20, I suggest that he considers whether he and the Government will be protected against challenges from bodies that he may have decided not to consult. They may have been missed from the list; civil servants and officials may not have wanted the Minister to draw them forward for their views. If he were to accept the amendment, will he and the Government be free of any challenges from those bodies that had not been drawn forward? 
 I find it slightly disappointing that the Government are using their massive majority every time to sweep aside any amendments that are tabled. We are trying to improve the Bill. Our amendments were tabled not for party political gain or to promote dogma, but to try to reduce the burdens on the poor, struggling people—

Helen Clark: I feel that the hon. Gentleman has made a facetious and erroneous point about the conduct of Government Members. This is the seventh Standing Committee on which I have served since the beginning of this Parliament. Ministers have often been prepared to consider sensible points made by Opposition Members, and have sometimes even accepted amendments. For all I know, my hon. Friend the Minister may be prepared to do likewise.

Richard Page: The hon. Lady brings a touching innocence to the Committee, which I find refreshing. As my hon. Friend the Member for South Cambridgeshire said, sotto voce, ``Don't hold your breath for the acceptance of any amendments.''
 The amendments aim to create a better balance and to give people the freedom to bring forward views and make representations. At the moment, those people will be restricted to lists that appear to the Minister to be representative of the various bodies that are affected by the proposals. Those lists were produced by the officials who were responsible for the problems of regulatory burdens in the first place and are the reason why the whole matter is being considered. 
 Can the Minister give me two assurances? First, especially in respect of individual representatives, are the Government leaving themselves open to challenges under human rights legislation by anyone who feels that they are being denied an opportunity because the Minister is not minded to include them on the list? Secondly, is an organisation or body that has not managed to catch the ministerial eye so as to get on the list able to mount a legal challenge in order to do so, or will it be frozen out for ever? 
 The hon. Member for Peterborough (Mrs. Brinton) has given the Minister a lead-in to show that he can be flexible in terms of accepting amendments, and I look forward to his reply.

Graham Stringer: Again, we are dealing with a well-established process—the super-affirmative process. The wording is taken directly from the Deregulation and Contracting Out Act, which was supported by the previous Conservative Government. All parties in both places have found that the Act works when it comes to consultation. The hon. Member for South-West Hertfordshire is mistaken when he says that the Government are using their majority to force legislation through; we are doing exactly the opposite.
 The super-affirmative process works by consensus because the Committees give unanimous reports. Is there a problem concerning consultation? No there is not, because a Minister will say, ``I shall consult those bodies that I believe to be affected or representative in this case.'' Can a Minister be 100 per cent. certain that he or she is right? No he cannot, because no Minister will have absolute knowledge. However, there are two safeguards against that. First, a Minister leaves the Room and a Committee questions whether he or she has been reasonable in his or her consultation. It considers whether other people have relevant views or would be affected by the proposals, in which case such extra people can be consulted. Secondly, the Cabinet Office publishes the regulatory reform orders on its website, as does the Department sponsoring the regulatory reform order. There is openness in the process. Even someone who is not thought to be representative or to have a relevant view can participate.

Brian White: Is my hon. Friend aware that this morning's Select Committee on Deregulation, which was considering an existing order, took the view that there was insufficient consultation on the restaurants licensing order and has decided that other people need to be consulted? That gives the lie to the Opposition's argument that there is insufficient consultation. The system has built-in safeguards.

Graham Stringer: I thank my hon. Friend. I did not know that, but his example beautifully makes the point that safeguards are built-in by openness on the website and two Committees considering whether a Minister has consulted well enough. That is a better process than pretending that a Minister could know everything about whether a body was representative or not; it is impossible to have that knowledge. That returns us to the question of whether we pass power from Parliament and to the courts if we replace subjective tests with objective tests.

Ian Stewart: My hon. Friend rightly rejects the argument of the hon. Member for South-West Hertfordshire. The Select Committee on Deregulation has the most rigorous consultative programme of any statutory body of which I am aware. The consultative programme is excellent and has been seen as the model for good practice in other areas of government. If Opposition Members of the Deregulation Committee had turned up, they would have been able to explain that to the hon. Gentleman.

Graham Stringer: I will finish—

Andrew Lansley: Before the Minister finishes, does he agree that discussing consultation processes that occur in Parliament does not answer the question with regard to preliminary consultation under clause 5? If he is content with what is proposed, which is the same as the provision in the Deregulation and Contracting Out Act, that will be one argument. However, will the Minister go further, consider amendment No. 20 and suggest whether the publication of orders on the Cabinet Office and departmental websites meets the need to publish an invitation for submissions in the preliminary consultation, as opposed to giving an opportunity to those affected to influence parliamentary consideration?

Graham Stringer: I understand the hon. Gentleman's argument. The Government are always trying to improve the flow of information and the consultation process. Putting regulatory reform orders on websites is a new innovation and allows people to participate in the initial consultation. The consultation information explains the super-affirmative process. Later, if people want to write to the Committee and to be consulted by it, they can influence the parliamentary process and have their views taken into account. The process is well tested and getting better, so I hope that the hon. Gentleman will withdraw his amendment.

Ian Stewart: If it appears that some Labour Members are becoming exasperated, it is because we understand the rigorous nature of the processes of the Deregulation Committee, which will continue. The Committee has even called outside organisations to give evidence during the consultative process. The powers already exist and will continue.

Graham Stringer: I thank my hon. Friend for that information and hope that the hon. Gentleman will withdraw his amendment.

Ian Bruce: One of my worries, which the amendment tabled by my hon. Friend the Member for South-West Hertfordshire would help to alleviate, is that under clause 5 the Minister will talk to people who are merely representative of interests. Companies or individuals who represent only themselves might not be invited by the Minister to send in representations. One often hears representations from a group on certain interests and then one person sends in a letter which wipes out the other representations. Does the Minister agree that asking individuals to send in representations would be better?

Graham Stringer: That is covered by subsection (1)(e), which states that the Minister will
``consult such other persons as he considers appropriate.'' 
That meets the hon. Gentleman's point.

Richard Page: Before I comment specifically on the Minister's response, I want to draw the Committee's attention to the fact that, although the comments of the hon. Member for Eccles (Mr. Stewart) were pleasing and helpful, he referred to the process when it has travelled on a little and not when the Minister is constructing the order to bring before the Committee. That is what we want to deal with.
 Phraseology such as ``the Minister considers'' does not show a broad spread of democracy, nor does asking someone to respond to a website. The Minister has given us no idea of the process for considering comments, which is one reason why we want to open up the process. However, he is adamant and is maintaining a position contrary to the hopes and expectations of the hon. Member for Peterborough. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Brian Cotter: I beg to move amendment No. 31, in line 41, at end insert
`allowing such organisations a minimum of 12 weeks to respond.'

Frank Cook: With this it will be convenient to take the following amendments: No. 19, in page 5, line 3, at end insert
`and—
(g) allow a minimum of eight weeks for the consultation described in sub-paragraphs (a), (b), (c), (d) and (e) above.'.
 No. 32, in clause 6, page 6, line 3, at end insert— 
`(ja) the manner and timetable of any such consultation.'.

Brian Cotter: The amendment would ensure that the consultation period lasts a minimum of 12 weeks. It would be wise to put that on a statutory footing, because it is widely felt that businesses do not receive sufficient consultation on regulation. For example, I refer the Minister to a survey for 2000 by NatWest bank of more than 5,000 employers and personnel officers. More than 68 per cent. of respondents believed that the Government had not given adequate time for businesses to respond during public consultation. Many small firms cited the haste with which legislation had been pushed through the consultation period as the main reason for their inability to implement parts of it.

Brian White: Is the hon. Gentleman aware of the point that was made to the Deregulation Committee when it took evidence on the Bill that, even if the consultation period were substantially extended, there would be some businesses for which that period would not be long enough?

Brian Cotter: I accept that point, which is well made. However, we must agree to some reasonable period of time, and I think that 12 weeks would be reasonable. According to the Better Regulation Task Force, the views of small business are insufficiently taken into account by policy makers. The Minister would be the first to acknowledge that that task force is a powerful organisation that we should listen to, and it also said:
``there is concern about inadequate consultation with small firms about the detailed arrangements for implementation and enforcement.''
 Those examples show that there is great concern that many measures are pushed through without adequate consultation. I have encountered that concern frequently at different times during my time in Parliament, and it is necessary to highlight that point strongly because the amendment would be particularly beneficial to small businesses that do not have in-house experts to consider legislation on their behalf. It would also ensure an adequate period to formalise any response that they might want to make. It is self-evident that a longer consultation period would also mean that responses would come from a wider cross-section of organisations, thus representing a variety of different views. That would surely result in better legislation. 
 A minimum period of consultation would mean that legislation and regulations would be properly examined by the many external organisations on which they would impact. Once again, there would be less opportunity for a Minister to try to slip through legislation that went against the spirit of an Act—although I am sure that this Minister would not do that. In view of the comments of the Better Regulation Task Force, he will agree that consultation is extremely important. Although we cannot conduct consultation indefinitely, setting the figure at 12 weeks would provide a reasonable balance between carrying on ad nauseam and giving small businesses enough time to know what is coming down the line and to influence and respond to the policy, which is what consultation is all about. I hope that the Minister will consider the point seriously and I look forward to hearing his response.

Andrew Lansley: I am grateful for the opportunity briefly to say a word about amendment No. 31. Amendment No. 19, which is grouped with it, takes a slightly different view. I would not dissent from what the hon. Member for Weston-super-Mare said about the desirability of consultation and the necessity of providing sufficient scope for it. I would certainly hope that Ministers and Departments would allow sufficient time for consultation. My recollection is that it is standard practice to allow 12 weeks for substantive responses to consultation. However, we are dealing with a slightly different process and with preliminary consultation rather than a formal process.
 The purpose of the amendments is to specify not the standard time for consultation, which is often done in relation to regulations made under other enactments, but a minimum period for consultation. We sought to set a lower minimum period in amendment No. 19, simply because we are dealing with a period of preliminary consultation which will normally be consultation with, as the clause provides, bodies representative of interests or statutory bodies affected which are often much better geared to consultation. The substantive consultation that would follow and would involve the Deregulation Committee, might draw in interests or persons who rarely have contact with Government Departments and who could not reasonably be expected to be aware of the prospect of such legislation coming forward. 
 At the preliminary consultation stage I assume that we are dealing with substantive bodies that represent interests and have the capacity to deal with consultation and amendments that are designed to set just a cautionary minimum upon Departments and Ministers so that they are never tempted to go for a preliminary consultation that is unduly abbreviated. I wonder whether the Minister might at least respond positively to that thought.

Graham Stringer: The Prime Minister launched a Cabinet Office document improving the process of consultation at the end of November last year—
Mr. Lansley rose—

Graham Stringer: I suspect I know what is coming. The basis of that consultation document was a standard three-month period. That could apply to consultations on regulatory reform orders with all the protections that exist later in the process. As everyone would acknowledge, there are times when initial consultation must be short for urgent or special reasons. Those reasons must be stated. The nature of the consultation process in that consultation document is three months, apart from in exceptional circumstances and, as under the Bill, reasons must be given for why the Government are responding in a particular way to the consultation document. My basic point is that the amendments are not necessary.

Andrew Lansley: The Minister might think me tedious as I raised this point on Second Reading, but if the Prime Minister was so keen on consultation, why at the Labour party's Glasgow conference did he leap into announcing parental leave changes on the day on which the consultation was due to end and before he could have received all the responses? I was reminded of that when I heard Mr. Digby Jones of the Confederation of British Industry on the radio last night. He complained about precisely that fact, which heightens the need for consultation provisions to be squarely represented to Ministers in the legislation, so that they cannot be unduly abbreviated.

Graham Stringer: The Prime Minister was right. His announcement was in line with the vast majority of the consultations that had been received on the matter. We may be in the run-up to a general election, and the big consultation on many of the fundamental issues that affect people's rights at work will take place then. Conservative Members will be able to set their views, beliefs and intentions against those of the Labour party. I suspect that we know what the outcome will be.
 On the basis of the consultation document and the fact that this is a three-stage process, the amendments to clause 5 are unnecessary. I therefore ask the hon. Gentleman to withdraw the amendment. 
 Amendment No. 32 would add to clause 6 a requirement for details of 
``the manner and timetable of any such consultation'' 
to be incorporated in the document. If the hon. Gentleman thinks about the existing obligation under clause 6(2)(j), which relates to clause 5(1) or (3), that information will already be present as part of the information that the Minister would reasonably be expected to provide. Even if it were not available, the Committees would have it and it would therefore be publicly available. The amendment is unnecessary, and I ask the hon. Gentleman not to press it.

Brian Cotter: The consultation for the general election seems to be a rather moveable feast. We do not know how long the run-up period will be, but we shall no doubt learn that shortly. It may be three weeks. It is not usually 12 weeks, but we shall have to see.
 I thank the Minister for his response. It was important to raise this very significant issue on behalf of small businesses and the fact that it has been discussed is now in black and white. I take it that the fact that it has been raised and that the Minister and the Better Regulation Task Force accept the importance of consulting small businesses will mean that that is taken on board in future. On that understanding, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Andrew Lansley: I beg to move amendment No. 18, in page 5, line 3, at end insert
`and—
(f) in relation to the consultation described in sub-paragraphs (a), (b), (c), (d) and (e) above send to each person consulted a draft copy of the document the Minister intends to lay before Parliament as described in section 6 below.'.
 The amendment would require the Minister to provide those persons whom he consults in the preliminary consultation—my hon. Friend the Member for South-West Hertfordshire would say those whom the Minister in his wisdom and at his discretion chooses to consult—with a draft copy of the document that he is required to lay before Parliament under clause 6. We shall go on to discuss what should be in such a document, so you will not expect me to dwell on that at any length, Mr. Cook. Suffice it to say that it will be a substantive document. Subject to what we go on to decide, it will set out many of the issues on which the consultees in the preliminary consultation want to know the Government's views, because we are dealing with a relatively complex set of orders compared with what occurred previously under deregulation and contracting out provisions. 
 We are dealing with a series of tests. As we have learned, we are talking not just about whether there is the necessary protection, but about whether there are reasonable expectations that need to be retained, whether a public interest will have to be balanced against the interests of persons affected and what the Government think that public interest might be. We will need to know whether the Government propose to impose burdens and whether it is desirable to proceed with an order that balances those additional burdens with the benefits that might flow from them. 
 On the basis of the Bill as drafted, we shall have estimates of the savings or increases in costs that will result from proposals. Obviously, those who are consulted will focus on that quantitatively. If we have our way, we might also end up with a process that is more akin to a genuine, comprehensive regulatory impact assessment. 
 All those questions would be of interest to preliminary consultees, but which comes first, the chicken or the egg? Will we have the document that is to be laid before Parliament, with all the details that must be presented in it, before the preliminary consultation, or will we have all the details only after the preliminary consultation? We should not expect Government to have answers to all the questions before the end of the preliminary consultation. Many facts and views—particularly concerning impacts, effects on persons and increases in savings and costs—will be derived from responses to the consultation. 
 The purpose of the amendment is not to pretend that the Government would know, before the preliminary consultation, all the facts necessary to complete the document referred to in clause 6. It is to suggest that it would be helpful to the preliminary consultation if the Government were to structure the consultation not simply around a presentation of the proposals but around the document that is subsequently to be laid before Parliament. That would help to focus the minds of consultees, especially in the early stages when regulatory reform orders are to be presented, on the considerations that must be decided by Ministers and on the issues that must be judged by the Deregulation Committees and the House. It is especially important in the early stages that the preliminary consultation should be structured around a draft copy of the document that will subsequently be laid before Parliament. 
 Ministers should not allow the consultation under clause 6 to carry too great a burden for the interests outside Parliament. In my experience, by the time Ministers lay a document before Parliament, they have become progressively more attached to it. Therefore, the earlier that we can expose the document to the outside world, the better. Consultation is free and open if Ministers have not committed themselves. The draft document might include various formulations or caveats and leave empty brackets, as it were, in which to fill in the precise detail. The consultation would be real in the sense that those bodies that are making representations would feel that they are feeding their material directly into the document that is to be presented to the Deregulation Committees and to Parliament. It is important that Ministers do not become too fixed on the document that is to be laid before Parliament, as if it were the final word. If Ministers and officials are relatively open to consultation at an early stage, it will be more effective. 
 If we were to adopt the amendment, we would forestall the risk that Ministers, in presenting their proposals, might tend to present the benefits of the regulatory reform rather than focusing on the costs. I hope that one specific purpose of the document to be laid before Parliament under clause 6 is to force Ministers to disclose their cost estimates. Therefore, by extension, those who are consulted under clause 5 would be clear about the costs that Ministers anticipate will be associated with the proposals. I hope that the Minister will not only continue to be constructive in his response, but be positive about the amendment.

Graham Stringer: I thank the hon. Gentleman for tabling the amendment; I understand what he is trying to do. However, some of the information that will be required for the document and under clause 6(2) will come from the consultation, and some of the costs will be elicited from the people affected by the measure. The hon. Gentleman is suggesting that, as the process develops, the Minister will become increasingly firm in his views and that it will be easier for him to place the structure of the document in the context of clause 6(2).
 The process is open. The consultees can state their costs, an issue to which the hon. Gentleman referred repeatedly. To pretend to know at the start things that are not known would be to put the cart before the horse. It would be more sensible to have open consultation, find the information and present it to the Committee. That process would show how one complied with the conditions in the Bill. Attempting that before consultation would lay one open to the accusation that one had decided what to do before consulting people thoroughly.

Andrew Lansley: I regret that the Minister had precisely the answer to my points that I feared he would.
 The Minister is unwilling to contemplate the creation of structures under clause 6. If we want the parliamentary process to be constructed around such issues—I can see that much care has gone into the structure of the Bill—it is unhelpful to those who are the subject of preliminary consultation to receive something that is less specific than the document. It will be helpful to have that document structure even if, as the Minister said, there are omissions and gaps in knowledge when trying to complete the document later. 
 If consultation is to be open, Ministers should acknowledge that it will be open from the beginning, even when all the information is not available. That may highlight something that Ministers find embarrassing, but they should take it on the chin. They propose to go down the path of regulatory change, but they are unaware of the burdens—their impacts and costs, and where they fall. It would be more honest to present that information and make it clear that the balances have not yet been struck, and show consultees the initial proposals and how they can be justified in the document. 
 The proposals should not be presented as if a hidden agenda of knowledge existed; otherwise, there is a risk that the document put out for consultation would rehearse the criteria for a regulatory reform order and the tests that had to be applied in the legislation, which would suggest that Ministers had undertaken those tests before they had done so. In truth, the preliminary consultation should often state, ``These tests must be passed, but in some respects we do not yet know whether we have passed them.'' 
 We therefore need the various forms of information. As someone who has been both the originator and, in a former life, the recipient of such documents, I know that it is helpful to have a clear steer on information held by the Government about which they feel confident, as opposed to information that they do not hold and on which they need advice. The Minister should at least contemplate allowing the form of consultation to follow some of the precise tests laid out in clause 6(2), even if such a provision is not to be included in the Bill.

Graham Stringer: I have tried to be helpful. The precise wording of the amendment puts the cart before the horse, but good consultation and the essence of the Cabinet Office's consultation policy document are precisely as the hon. Gentleman described. Consultees should know what information the Government want, and what it is possible and impossible to do under the proposals. That is the nature of good consultation, so I can give the hon. Gentleman some comfort in that regard without pretending that we can draw up a document under clause 6(2) before the appropriate point. That would be a confusing process, but I am happy to accept the principle behind what he is saying—in fact, it is Government policy.
 It is worth emphasising that consultation does not stop when the statement under clause 6(2) reaches the Committee. The Committee itself may take extra information, deem the consultation inadequate and ask the Government to reconsider. That is very different from the normal Government consultation process that precedes primary legislation. In fact, the Committee's relationship with the Government differs greatly from that which normally applies in a straightforward consultation exercise preceding primary legislation. On that basis, I ask the hon. Gentleman to withdraw his amendment.

Andrew Lansley: I have pressed the Minister on this subject as far as is decent. Even if it is Government policy to consult in the manner described, I hope that the Minister will ensure—in fact, the task might fall to us—that subsequent implementation is indeed undertaken in the manner suggested, so that those who are the subject of consultation can be sure of what is required of them. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Brian Cotter: I beg to move amendment No. 33, in page 5, line 3, at end insert—
 `(1A)The consultation required by subsection (1) above will include details of whether any savings or increases in cost are estimated to result from the proposals and, if so,—
(a) the reasons why savings or increases in cost should be expected, and
(b) if it is practicable to make an estimate of the amount, that amount and how it is calculated.'.
 As is clear from the amendment, it is somewhat disturbing that under the Bill the consultation need not include details on 
``the reasons why savings or increases in cost should be expected'', 
 ``an estimate of the amount . . . and how it is calculated''. 
If the amendment were accepted, the Minister would have to disclose, where appropriate, any costs or savings likely to be incurred in the consultation process as a result of an order. Under the Bill as drafted, the Minister is obliged to do that only under clause 6—when the document is presented to Parliament. 
 I thought that, in keeping with the general direction of legislation and the European small business charter, the Government were saying that they wanted to do all that they could to ensure proper assessment of new regulations and Bills. That should apply equally to consultation on orders. It seems bizarre that the proposal for an order should be put out to consultation without the inclusion of such information. How can a business or organisation come to a reasoned conclusion about the impact that an order might have on them, when it is not aware of its possible financial impact? 
 The point is especially relevant to small businesses, which have been much discussed here, as in many other Committees. Small businesses have a high profile now, because people realise their importance to the country's economy. The cost of regulation often has a disproportionate impact on small businesses, especially micro-businesses. The devil might be in the cost details of an order that seems reasonable in principle, and therefore acceptable to the relevant organisations. If it were found to place significant financial burdens on organisations, an entirely different conclusion might be reached. 
 To be really effective, a cost analysis must be provided during the consultation process. Great emphasis is now placed on impact assessments when Bills come before Parliament. I hope that the same emphasis will be given to the consultation process for orders. The point is a key one for small businesses and organisations, and I shall be interested to hear the Minister's comments.

Andrew Lansley: I am grateful for the opportunity to speak on amendment No. 33. It would achieve a small part of what amendment No. 18 set out to do—bring part of the reasoning behind a proposed order into the preliminary consultation process. I hope that the hon. Member for Weston-super-Mare will forgive me, but I find it slightly curious to think that one could be clear about the costs and savings if other information were not made available. Some of that information would be more qualitative; the better advanced it was, the better the quantitative information, and savings in cost, might be.
 Nevertheless, the hon. Gentleman makes a good point, and I do not want to be uncharitable to him. Later, we are likely to debate regulatory impact assessments, which I know were debated in another place. They are not just about the narrow issue of the cost of adapting to regulations. We have moved to them from compliance cost assessments, and the distinction between the two is important. The purpose of a regulatory impact assessment is to understand all the effects of a regulatory change.

Brian White: If what the hon. Gentleman says is true, why does his party oppose the use of regulatory impact assessments in the public sector? Conservative Members have said that they should be used only in business.

Andrew Lansley: Perhaps the hon. Gentleman will quote where that was said chapter and verse. If there is a difference, however, it is because of the point that I was about to make. Compliance cost assessments measure the direct cost of changes in regulations. In the public sector, such costs are often direct and can be quantified. That is often precisely the method that the public sector uses to quantify costs when they are expressed to the private sector. The larger changes in costs and impacts are the commercial consequences of changes in regulations that might create different comparative advantages between businesses in terms of prices, sales, overheads or whatever. Perhaps I can gather the information together for our debate on Thursday, but from memory, I believe that the regulatory impact assessment on the Regulation Investigatory Powers Act 2000 was specific as to some of the costs that would flow directly from those changes. The regulatory impacts properly should have reflected some of the commercial consequences, which were measured in tens of billions, rather than tens of millions, of pounds. That was the consequence of examining direct costs on businesses.
 I shall not digress further so as not to prolong the debate, but the purpose of the amendment of the hon. Member for Weston-super-Mare might be to focus the minds of those who are the subject of consultation on some of the direct savings and increases in costs, which will then have precisely the kind of commercial consequences on a broader range of prices, sales, overheads, competitiveness and so on that will give rise to regulatory impacts. That ought to be borne in mind in the preparation of documents and be well understood by businesses before they consult on the parliamentary stages of the process. I shall not say that there is no value in amendment No. 33, because there is. I wish that it were amendment No. 18, but amendment No. 33 is good as far as it goes.

Graham Stringer: I do not believe that the amendment adds anything to what is already in the Bill. The hon. Gentleman knows, because we have discussed it many times, that every regulatory reform order has to have with it a regulatory impact assessment. As the hon. Member for South Cambridgeshire said, the RIA is about rather more than costs and benefits. It is an analysis of the best way forward, as we improve the process. We have to assess the impact of any new regulations on different parts of the economy, as opposed to just on businesses.
 That RIA will accompany RROs and will present more information than is asked for in the amendment. Therefore, the amendment would add nothing to the Bill. I agree with the comments made by the hon. Member for Weston-super-Mare about small businesses. We introduced the Bill to balance regulatory regimes, which may benefit small businesses. I ask the hon. Gentleman to withdraw the amendment.

Brian Cotter: This has been a useful debate. It has highlighted the concerns of all businesses. There should be serious assessments in these matters. We have long rehearsed the importance of regulating impact assessments generally—I am sure that the hon. Member for South Cambridgeshire agrees. Even in the short time that I have been in Parliament, I have noted that some Bills do not adequately address that aspect. I know that the Prime Minister has privately expressed great concern about the effectiveness of RIAs.
 Our debate has been part and parcel of the concern expressed about the impact of Bills and regulations. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Richard Page: I beg to move amendment No. 21, in page 5, line 8, leave out
`it appears to the Minister,'.

Frank Cook: With this it will be convenient to take the following amendments: No. 22, in page 5, line 9, leave out `that'.
 No. 23, in page 5, line 10, leave out `he' and insert `the Minister'.

Richard Page: I freely admit that it would have been much easier to speak to these amendments if the Minister had been generous and kind enough to accept amendments Nos. 16 and 17. Perhaps to satisfy the hon. Member for Peterborough, the Minister may be willing to accept amendment No. 21 and to show the generosity of spirit which was referred to and for which we are desperately, if vainly, looking.
 These amendments are consistent with what we have been arguing for throughout the debate. There must be a reduction in the power of the Executive. We should not forget that the Bill has been introduced because the Executive are responsible for extra regulations and the difficulties that have made businesses groan and shudder under the weight of such regulations. 
 The principles lying behind amendments Nos. 21, 22 and 23 are the same as those lying behind amendments Nos. 16, 17 and 20. Under our amendments, it will be easier, if not automatic, for people who were originally consulted to be approached again and asked for further views on any variant of the proposals and their effect. 
 I am sure that I will touch a chord with every member of the Committee when I say that we have all passed legislation in good faith. We may think that we have done the right thing, but be appalled when we go out into the real world and realise the raft of rules, regulations and burdens that have resulted from such legislation. I have certainly said to myself, ``I did not intend to lumber business with that amount of legislation.'' 
 May I take the Minister back to the consultation process and ask him what will be the custom and practice of that process? The amendment would remove from the Bill the slightly arrogant phrase 
``it appears to the Minister''.
 When the consultation takes place, will people be consulted about the new ideas, rules and methods? Will they be consulted about cost estimates that will flow from the changes and proposals? Unless we give them some idea of the costs and burdens, not everyone will be in a position to carry out the regulatory impact assessments that we have been discussing. I recommend that the Minister should move towards setting up an independent unit for regulatory impact assessments. Too often, having created the baby, a Department can find no flaw in it, as there appears to be little cost involved in its implementation and operation. 
 I bring the Minister all the way back to the start of the consultation process. I should like to think that those who have given their views on the proposals will be automatically consulted if there are variants to those proposals. At what point will they be informed about costings, so that they can make logical and sensible decisions?

Graham Stringer: I hope to deal with the amendment quickly. The costings issue was dealt with in the debate on the previous amendment. All RROs and RIAs with the costings will be part of the process of consultation. Without repeating all that has been said about transferring responsibility from Parliament and the Government to the courts, this is one of the more unusual amendments that have been tabled. If the Minister has instigated consultation but realises that he must change his proposals and initiate further consultation, he will be a model consulter. He recognises that his original proposals were not quite apposite, so he consults again to obtain more information. The hon. Member for South-West Hertfordshire is suggesting that he should then be taken out of the equation.
 The Opposition tabled a series of amendments to test us on removing ministerial judgment from the Bill, but they have reached the point of absurdity and I ask the hon. Gentleman to withdraw his amendment.

Richard Page: I thank the Minister for his positive and constructive response. We are starting to prod a nerve when he responds in that way. His officials must be bleeding quietly to provide him with those abrasive words to utter to young and inexperienced hon. Members such as me.
 The point is not to take the Minister out of the equation, but to remove the Minister's choice to do this, that or the other.

Graham Stringer: That is what Ministers are for.

Richard Page: When it comes to regulation, I sometimes wonder what they are for. They seem to be the mouthpiece of their officials and rubber stamp what their officials do. Ministers do not do their job and hold the line. I am looking the Minister straight in the eye when I say that I have been equally guilty. He is falling into the same trap. As the papers come through, they receive the ministerial rubber-stamp and go on down the conveyor belt. That is the reason for the amendments.

Helen Clark: Will the hon. Gentleman give way?

Richard Page: I shall certainly give way to the hon. Lady, but I must tell her that the Minister is not going to accept my amendment.

Helen Clark: Instead of taking the Minister out of the equation, perhaps we should bow to his superior judgment.
 Does the hon. Gentleman really believe it apposite in Committee to criticise civil servants who cannot defend themselves?

Richard Page: I accept the hon. Lady's strictures, but something must be done to stop the sausage machine churning out regulations day after day. She was not in Committee this morning--I am delighted that she has joined us this afternoon--and I am more than willing to furnish her with a list of the regulations that has been put on to the statute book during the past four years. They have increased by more than 10 per cent. That is what I am objecting to. Somehow, we must remove those burdens from business.
 The purpose of the amendment is to try to tease from the Minister the process whereby consultation will take place and the extent to which the matter will be fully and fairly examined. I asked about costs and the Minister responded to previous amendments, but he has not given as full a picture of costs as I want. However, he has a closed mind and will not accept that there should be a broader and more democratic basis. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Frank Cook: We now come to the question that clause 5 stand part of the Bill.
Mr. Lansley rose—

Frank Cook: I must say that, following the lengthy discussion on a range of amendments on the matter, I shall need to be persuaded, but not by brown envelopes. Very briefly, Mr. Lansley.
 Question proposed, That the clause stand part of the Bill.

Andrew Lansley: Would I be anything else? I shall not repeat our discussions on previous amendments, but the Minister is in the business of telling us what it is all about. Clause 5(1)(d) provides for consultation with the National Assembly for Wales where the provision will extend to Wales, and I am sure that that is fine. However, I note—this is a genuine question about something that I do not understand—that the Bill extends to Northern Ireland. I cannot find a consequent provision for consultation with the Northern Ireland Assembly. The explanatory notes have not enlightened me, and I wonder whether the Minister might do so.

Frank Cook: That sounds reasonable.

Graham Stringer: The Bill represents the constitutional settlements with Wales, Scotland and Northern Ireland. In Scotland, the Deregulation and Contracting Out Act will continue. In Wales, where powers have been devolved, the Welsh Assembly must consult. In Northern Ireland, where many regulations have been taken by Orders in Council, the Bill will not apply, but it will apply where legislation has been passed for the whole of the United Kingdom.
 Question put and agreed to. 
 Clause 5 ordered to stand part of the Bill. 
Further consideration adjourned.—[Mr. Rooney.] 
 Adjourned accordingly at nine minutes to Seven o'clock till Thursday 29 March at five minutes to Ten o'clock.